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Monday, October 25, 2010

How Finance decided to publish the red book

The concerns of journalists about the potential effect of disclosure logs on their FOI exclusives from May next year were no doubt heightened, for those who made Freedom of Information applications including Sean Parnell at least, by the decisions by Treasury and Finance to publish on the internet their incoming government briefs. In the Senate estimates Finance and Public Administration hearing on the Department of Finance and Deregulation last week, where (some) questions seemed better informed by what was in the brief, questions were also asked about the decision to publish the red book.

David Tune

The Secretary David Tune said the Department had three Freedom of Information applications on hand at the time, the first received on the Monday after the election from Michael McKinnon at Channel 7, followed by requests by Parnell from The Australian and Shane Wright from the West Australian. The decision to publish a redacted version was taken by the Department alone, possibly while the government was in caretaker mode, and the Prime Minister's Department was informed, not consulted. There was no mention of the minister being involved. Tune said Finance had released a redacted version of the the brief after the 2007 election in response to a request from Laura Tingle of the Financial Review, something less publicised than the similar decision at the time by Treasury to release its brief to Michael McKinnon. That brief was then published on the 7 Network site.

Extracts for Estimates junkies follow.

Page 77.

Senator CORMANN —Thank you, Mr Chairman. Talking about the red book I just first want to

congratulate on your decision to release it. I assume that that followed an FOI request, did it?

Mr Tune—Yes, it did. We had three FOI requests for our red book—well, we had three FOI requests for the

book that we provided to the incoming government. As you know, we do two books.

Senator CORMANN—Are you able to tell us when you received those requests?

Mr Tune—I could get those for you on notice, but certainly the first one appeared on the Monday after the election.

Senator CORMANN—The Monday after the election?

Mr Tune—Yes. They were from journalists, all three of them.

Senator CORMANN—When did you make a decision? How long did it take you to release?

Mr Tune—You have got the standard FOI time to have a look at those. There was some discussions with the applicants around the terms of their requests, and the clock started ticking. We came to a conclusion around the time that we would have had to make a decision on the first of those at least, and given that we were looking at these together, that rather than just issue them to a small number of people it would be better to actually utilise the FOI principles and release them in the public arena.

Senator CORMANN—So you released them to everybody at the same time?

Mr Tune—We did, yes.

Senator CORMANN—And in the end you decided not to charge for the FOI requests from those that made the applications?

Mr Tune—I will confirm this with you, but I think we refunded their fees.

Senator CORMANN—I understand that you sent people back cheques, which must be a pretty novel

experience to get cheques back from the finance department.

Mr Tune—Sorry, I do have the requests here: 23 August was the first, 15 September was the second and 18 September was the third—as I said, all from journalists.

Senator CORMANN—You are happy to share with us who made those requests?

Mr Tune—Yes, I can. The 23 August one was from Michael McKinnon at Channel 7. The 15 September one was from Sean Parnell, I think, of the Australian. The 18 September one was from Shane Wright of the West Australian newspaper.

Senator CORMANN—And you made the decision to release it publicly to everyone on which day?

Mr Tune—It was the Friday, 1 October.

Senator CORMANN—That is pretty good. Did you have any conversations with the Prime Minister’s

department before making the decision to release it to everybody at the same time, or was that a completely autonomous decision?

Senator FIERRAVANTI-WELLS—I am just going off to another area. Mr Tune, can you just clarify for me the access to the red book? I understand that the FOI requests were made during that 17-day period before the government was formed.

Mr Tune—Yes.

Senator FIERRAVANTI-WELLS—Normally access to the red books—as I understand it, they go to

cabinet and, as such, they have a different protection afforded to them when the government is informed immediately, and there was some speculation in the press. Could you just clarify that point for me, please?

Mr Tune—I will run through what happened in our case, but every department, I think, was probably

different. We had three FOI requests from journalists for our incoming government brief for the party that formed government. As you know, we do two books—

Senator FIERRAVANTI-WELLS—Yes.

Mr Tune—and only one of them is provided to the party that forms government. The first one of those

requests was on 23 August, which was the Monday after the election, from Michael McKinnon, from Channel 7. The second one was from Sean Parnell, from the Australian, on 15 September. The third one was from Shane Wright, from the West Australian newspaper, on 18 September. So we received those three requests. We were in the process of processing them and, as I explained to Senator Cormann, I think, earlier on, we came to the view that rather than just respond to these three requests it was preferable to still treat them as FOI requests but to release it ourselves to the general public. So we put out a press release on 1 October, which provided that.

Senator FIERRAVANTI-WELLS—So those comments that were in the press in relation to had the

government been formed—I think you know that various press reports—

Mr Tune—I am struggling a bit to remember that.

Senator FIERRAVANTI-WELLS—In other words, it just happened to be the particular circumstances— what I want clarified is that it just happened to be the particular circumstances of where we were with the 17- day delay in relation to the government being formed.

Mr Tune—Yes.

Senator FIERRAVANTI-WELLS—That enabled access to them this time, but normally there is no access to them. There has not been access to them in the past.

Mr Tune—Definitely not from Finance, no.

Senator FIERRAVANTI-WELLS—Thank you.

........

Page 108.

Mr Tune—Thanks, Chair. Senator Fierravanti-Wells asked me a question before dinner about whether Finance had released its incoming government brief, and I think I said ‘no’ to the question. In fact, I am informed that following the 2007 election Finance did release the incoming government brief. There was a request from Laura Tingle of the Financial Review on 7 February 2008, and a redacted version was provided to Ms Tingle on 7 May 2008.

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About Me

Peter Timmins is an Australian lawyer and consultant who works on FOI and privacy protection issues in Sydney, NSW. He has Arts and Laws (Honours) degrees
from the University of Sydney, and has been involved in the FOI field for 25 years.Peter is an experienced public speaker and commentator. See In the News and Testimonials, and Career Summary for more details on background and experience.